The leaked abortion opinion is not signed and thus not law. But it is highly informative that the “originalists” on the Court almost presumed that “the right” to an abortion was not protected within the Constitution. But, given the evidence NPR found in a Benjamin Franklin home remedy book, Alito is, unsurprisingly, wrong.
Alito cited Sir Mathew Hale’s abhorrent views on women being the property of the husband. As awful as the “law” may have been (And Alito did not include contrary views held even at the time), under the same theory, the Fourth Amendment guarantee against unreasonable searches and seizures may have been a cement wall guaranteeing the right to an abortion.
According to NPR, any family who possessed Ben Franklin’s wildly popular American version of “The Instructor,” had access to a chapter that included a Virginia booklet entitled Every Man His Own Doctor: The Poor Planter’s Physician.
Unlike Alito’s citation to Hale stating that a constable would have to arrest any doctor who prescribed an abortifacient to a pregnant woman which then killed the woman, an obvious reference to very late-term abortions, NPR states that the “The Poor Planters Physician” included the latest medicinal treatments for “for the suppression of the courses” – pregnancy, at least early-term pregnancies:
[The book] starts to prescribe basically all of the best-known herbal abortifacients and contraceptives that were circulating at the time,” Farrell said. “It’s just sort of a greatest hits of what 18th-century herbalists would have given a woman who wanted to end a pregnancy early.”
“It’s very explicit, very detailed, [and] also very accurate for the time in terms of what was known … for how to end a pregnancy pretty early on.”
The chapter was not controversial.
Thus, even under Hale and Alito’s theory that the woman was a husband’s property, if the husband purchased the book, which – without controversy – included the most modern abortion techniques, and those techniques were used, surely the Fourth Amendment prevented the government from bursting through the door to take away a husband’s decision. Just as obviously, if a woman took the “recipe” without the husband or father’s permission, it was his problem, not the government’s. Now that we do not view women as property, it would seem that right has transferred to the woman herself.
“Originalist interpretation” comes in very handy if one is a conservative because, inherent to the name, one is trying to hold on to the past. But it is also an absurd exercise to get where a justice wants to go anyway. Alito believed it was sufficient to say that women were the property of their husbands at the time of the Constitution thus there couldn’t possibly be a woman’s right to an abortion. But under Alito’s same theory, there is ample evidence that, perversely, a husband had a right to an abortion. And, as we noted, given that women are no longer property…
That right went somewhere and it obviously went to Roe and Casey, flowing from the Fourteenth Amendment, but clearly rooted in the Fourth, during a time in which the family practiced most “medicine” in the home. Alito’s entire rationale falls apart if a doctor visits a woman at home and performs an abortion. In other words, Alito is provably wrong.
Jason Miciak believes a day without learning is a day not lived. He is a political writer, features writer, author, and attorney. He is a Canadian-born dual citizen who spent his teen and college years in the Pacific Northwest and has since lived in seven states. He now enjoys life as a single dad of a young girl, writing from the beaches of the Gulf Coast. He loves crafting his flower pots, cooking, while also studying scientific philosophy, religion, and non-math principles behind quantum mechanics and cosmology. Please feel free to contact for speaking engagements or any concerns.